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From Antitrust Law Daily, September 12, 2014

Group bringing price fixing claims may get chance to serve OPEC in Austria

By Greg Hammond, J.D.

A political advocacy group was granted the opportunity to seek alternative methods of serving process on the Organization of the Petroleum Exporting Countries (OPEC), located in Vienna, Austria. In vacating and remanding the federal district court in Washington, D.C.’s dismissal order, the U.S. Court of Appeals in D.C. determined that the lower court failed to consider the political advocacy group’s request under Federal Rule of Civil Procedure 4(f)(3) to authorize the alternative methods of service (Freedom Watch, Inc. v. Organization of the Petroleum Exporting Countries, September 12, 2014, Srinivasan, S.).

Background. Freedom Watch, Inc. is a political advocacy group that filed suit against OPEC, alleging that the organization of twelve petroleum-exporting nations violated the Sherman Act by engaging in an international conspiracy to “raise, fix and stabilize the price of gasoline and other petroleum products in the United States.” The political advocacy group attempted to serve process on OPEC by delivering a copy of the summons and complaint by hand to the OPEC headquarters in Vienna, where an individual accepted service, and by sending a copy of the documents to the OPEC headquarters via Austrian mail. The district court granted OPEC’s motion to dismiss, finding that Freedom Watch failed to establish that it validly served process under Federal Rule of Civil Procedure 4, and further declined to authorize any alternative form of service, pursuant to Rule 4(f)(3).

Service of process. The court first agreed with the lower court, finding that Freedom Watch failed to effectuate valid service of process on OPEC. Specifically, the court recognized that none of Freedom Watch’s actions complied with Rule 4, and its attempts at service actually violated Austrian law. “Austria prohibits service of process on an international organization holding privileges and immunities under international law (which OPEC does) without the involvement of the Austrian Federal Ministry,” the court noted. Although Freedom Watch argued that its attempted methods of service led OPEC to gain actual notice of the action and its participation in the litigation, the court determined that the group nevertheless failed to substantially comply with the requirements of Rule 4.

Alternative methods of service. The second issue on appeal was whether the lower court abused its discretion in declining to authorize alternative means of service on OPEC. Under Rule 4(f)(3), a plaintiff may serve process “by other means not prohibited by international agreement, as the court orders.” Freedom Watch originally argued in favor of three alternative methods of serving process: email, fax, and service through OPEC’s United States counsel. First, the appellate court agreed that there was no abuse of discretion in rejecting the email and fax methods of service, as they would “constitute a substantial affront to Austrian law.” However, the court determined that there was an abuse of discretion in rejecting the third proposed method—serving OPEC through its United States Counsel.

According to the court, Freedom Watch relied solely on Rule 4(f)(3), but the lower court only examined the criteria set out in Rule 4(h)(1). Consequently, the dismissal order was vacated and remanded for the lower court to exercise its discretion, or not, under Rule 4(f)(3) to authorize service even if the alternative means would contravene foreign law. The court noted, “even if service cannot be effectuated on OPEC through United States counsel without violating Austrian law, the district court could still authorize such service if it would ‘minimize’ offense to Austrian law.”

The case number is 13-7019.

Attorneys: Larry E. Klayman for Freedom Watch, Inc. Carolyn Beth Lamm (White & Case, LLP) for Organization of Petroleum Exporting Countries.

Companies: Freedom Watch, Inc.; Organization of Petroleum Exporting Countries

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